No fence sitting: Essendon and James Hird learn the hard way

By Natalie Hickey, September 19, 2014

A judge has to make a call. There can be no fence sitting. A judge also has to do his or her best to make the right decision. In doing so, he or she will keep one eye on the prospect of an appeal and the risk of having the judgment overturned.

Each of these elements was readily apparent from the judgment handed down today.

Making a call

The central factual findings of the Court are devastating. This is because the judge determined:

“On the evidence before the Court, the investigation disclosed a strong link between deficient governance and management practices at Essendon and the possibility of Essendon players being involved in anti-doping violations”: [460]

In other words, Justice Middleton went further than an analysis of ASADA’s legal powers. He was prepared to conclude that the apparent anti doping rule violations leading to ASADA’s intervention were entirely justified.

Indeed, the judge went so far as to say:

“Therefore, the poor governance and management practices at Essendon were related to possible anti-doping violations by Essendon players, to the extent that such violations may have been systemic, or may have occurred because proper governance and management practices were not in place. This seems to have been the very situation that existed at Essendon”: [463] [emphasis added]

The matters relied on by the Judge to arrive at these conclusions included the Statement of Grounds brought by the AFL against Essendon and James Hird, the Deeds of Settlement entered into by Essendon and James Hird, the Interim Report and perhaps most significantly, the Switkowski Report (which was extensively quoted).

The reference to “systemic” was not accidental. The judge drew from the language in the Minister’s Second Reading Speech leading to amendments to the ASADA Act (see [333]). That speech stated, in the context of international cycling, that “systemic doping” and actions “bringing into question the integrity of sport” had the capacity to “undermine public confidence in sport”.

Australian Rules football does not have a separate culture and values when it comes to ADRVs. The judge was clearly of the view that footballers should be treated no differently from cyclists.

Accordingly, the judge concluded at [463] that:

“The disclosure of investigative information to enable the AFL to consider and, if thought appropriate, take disciplinary action against Essendon and its officials in this way was “in connection with” the ASADA investigation”

Critical factors

ASADA

At the heart of the judgment is the conclusion that the poor governance and management practices at Essendon led to possible ADRVs by Essendon players.

This leads to the next logical step in the analysis. ASADA’s core function was to investigate ADRVs.  To achieve this purpose, the judge determined that ASADA was entitled to act jointly and cooperate with the AFL.

Some might remark upon the way Justice Middleton went out of his way to comment favourably on Ms Andruska’s testimony. This can be explained. As the judge said, Ms Andruska was “the only witness whose credit was impugned” [70]. In other words, whereas ASADA did not seek to criticize the testimony of the Applicants’ witnesses, Essendon and James Hird did. They submitted: “Ms Andruska was non-responsive, evasive and partisan”. They commented on the “long pauses between the questioning of Ms Andruska and her responses”.

Parties are entitled to challenge the credit of witnesses. However, in civil litigation this really is the tactic of last resort, and to be resisted if possible. It is preferable – even just for the ‘look’ of a case – to describe a witness as mistaken rather than untruthful. Here, such an attack was on a former government official and now a private citizen.

It is therefore not surprising that the judge went out of his way to respond to the Applicants’ suggestion:

“I do not consider these criticisms, to the extent they impact on her veracity, can be sustained. Ms Andruska was a truthful witness. Ms Andruska was careful in all her responses, and in my view wanted to consider properly each question, seeking to provide a truthful answer”: [71]

The demeanor of James Hird as a witness was not subject to comment. However, a key finding of fact was made that:

“Although Mr Hird publicly supported for the “joint investigation”, privately he did not, but was motivated to co-operate with ASADA and the AFL in the best interests of Essendon and its players.” at [256(f)]

The AFL

The judge also commented on the AFL’s absence from the litigation (which might well have been due to releases given by Essendon and James Hird in their 2013 settlement with the AFL).

Whatever the reason, the lack of challenge to the AFL’s role in the ‘joint investigation’ was relevant both to the question of liability, and also to the utility of any final relief. Justice Middleton noted the lack of any allegation by Essendon or James Hird that the AFL had acted either contrary to public policy or unconscionably.

The players

The judge also regarded it as relevant that the 34 players were not joined to the proceeding. They were not parties. Specifically, the judge said that the Applicants had not “sought” for them to be joined, even though the players had a direct interest in the outcome.

Making a judgment ‘Appeal-proof’

No judgment is appeal proof.

However, in the next three weeks whilst Essendon and James Hird decide whether or not to take this step, their lawyers will advise them about the implications of the following key matters:

1. The findings of fact
2. The strength of the legal analysis
3. The impact of the discretionary factors

Findings of fact 

Findings of fact cannot generally be overturned on appeal. This is because the trial judge is in the best position to assess the demeanor of witnesses. Appeal judges only review the paperwork and do not get to see the witnesses again.

True it is, conclusions based on inferences (say, from documents) are more susceptible to challenge. However, appeal courts are generally at pains to support the decision of the judge below.

Indeed, the task of an appellant to overturn a judgment cannot be over-stated. It is very hard. There must generally be a clear error of law for an appeal court to find that one of their colleagues was mistaken in approach.

Legal analysis

A conservative legal analysis minimizes the risk of being overturned. Here, the judge’s analysis was conservative. Justice Middleton relied on the clear text of the legislation.

The provisions he regarded as most relevant are plain from his introductory comments about the role of ASADA’s CEO [30] – [32]:

“The CEO (the Respondent to both proceedings) was appointed pursuant to s 20D of the Act, and has the functions set out in s 21 of the Act, which functions include such functions as are conferred by the NAD Scheme (s 21(1)(b)).

The CEO has the power, conferred by s 22 of the Act, “to do all things necessary or convenient to be done for or in connection with the performance of his or her functions”, and is authorised under s 13(1)(f) of the Act and cl 3.27(1) of the NAD Scheme to “investigate possible anti-doping rule violations” (as defined in the NAD Scheme).

The CEO is also authorised by s 13(1)(g) of the Act and cl 4.21 of the NAD Scheme to disclose “non-entry information” obtained during such an investigation to, amongst others, “a sporting administration body”, subject to certain conditions (to which I will return). The CEO is — subject to exceptions (see relevantly ss 71(2)(a), (b) and (c)) — prohibited by s 71 of the Act from disclosing “NAD scheme personal information” (as defined in s 4 of the Act) to any other person.”

There is no better authority than Australia’s highest court when seeking to make a judgment bullet proof. Consistent with this, the judge was careful to rely on authorities from the High Court. These direct that the decision maker  closely focus on the text when engaging in statutory construction (rather than attempt to read between the lines).

It was also made clear that the label of a “joint investigation” had not been helpful. Justice Middleton said he regarded the label to be irrelevant. It was the nature, conduct and purpose of the investigation requiring analysis, he said.

Also damning for the Applicants was their decision to cooperate in the original investigation. James Hird and the players attended interviews. They answered questions. James Hird, in particular, did not seek to avoid answering questions by relying on the privilege against self-incrimination. He was legally represented.

The judge implied that, had they taken the point when initially interviewed, and refused to answer questions, then James Hird and the players might well have been in a better position to challenge ASADA’s conduct. However, they did not take this path.

This cooperation was a product of the contractual arrangements between coach / players and the AFL, which included compliance with the AFL’s Anti-Doping Code. Essentially, Justice Middleton took the view that this was the price of enjoying the privilege of being part of the AFL competition.

Specifically, Justice Middleton said that James Hird might have felt he had no choice but to cooperate. However, he said, this was a legal consequence of James Hird’s decision to enter voluntarily into a contractual regime with the AFL. He could have refused to produce documents but this would have breached his contractual obligations.

Justice Middleton did not gloss over ASADA’s close cooperation with the AFL. He found that ASADA’s reliance on the AFL’s compulsory powers helped ASADA both with its administration, and also in relation to the compulsory interviews with the players. But he found nothing wrong with this.

ASADA and the AFL had different but related purposes in their investigations. Both were directed to the question of ADRVs although the AFL’s function was disciplinary. Justice Middleton was not required to comment on the legitimacy of the AFL’s own activities. The tenor of his remarks though, suggests that given the nature of the conduct being investigated, it was perfectly appropriate for both ASADA and the AFL to be proactive in their approach.

Discretionary factors

Discretionary factors are also very difficult to challenge on appeal.

Here, discretionary factors would have come into play if Justice Middleton found ASADA’s investigation to be unlawful. This is because he would still have needed to resolve the question of whether orders should be made setting aside the show cause notices. It is at this point that the judge would then ‘exercise his discretion’ as to whether such orders should be made.

ASADA had argued that the judge should exercise his discretion not to grant relief because, amongst other things, the Applicants had taken too long to launch the litigation and because they had unclean hands due to their role in the supplements saga.

Justice Middleton did not need to deal with this issue. He had already found that the applications should be dismissed because ASADA had used its powers legitimately.

However, it appears that the question of whether ASADA acted appropriately with respect to the interim report was likely finely balanced. This is because Justice Middleton said that if the interim report had been produced unlawfully, he would still be disinclined to make the orders sought.

He said further:

“The Interim Report was provided to the AFL on 2 August 2013, with the knowledge of Mr Hird, Essendon and the 34 Players. No proceedings were brought to challenge the provision of the Interim Report to the AFL until the commencement of these proceedings.” [495]

“More significantly, the AFL (not a party to these proceedings) has acted upon that Interim Report, bringing disciplinary charges against Essendon and Mr Hird. Both Essendon and Mr Hird entered into settlements with the AFL in relation to those disciplinary charges.” [496]

Justice Middleton said any orders would essentially be futile because ASADA could source the same material again from the AFL and re-issue the show cause notices. Therefore even if his legal analysis was wrong and ASADA acted unlawfully, he would still have declined to make any orders restraining the show cause process.

Coded signals

Some might think the decision went all one way and, for the most part, it did.

However, there were a few subtle signals for the Federal Government and ASADA.

For the Government, the message was clear. The ASADA Act does not empower a Minister to override its powers in relation to a particular athlete. ASADA is to be independent of the influence of Government.

Justice Middleton was of the view that ASADA had been under pressure to conduct its investigation as soon as possible. However, he did not regard this pressure as giving rise to a dereliction.

For ASADA, the message was also clear. ASADA needs to exercise its own functions carefully, make proper decisions, and not be frivolous in its approach. So much was clear from Middleton J’s discussion about discretionary considerations. He warned that if ASADA had been required to re-issue the show cause notices, it would have needed to re-commence the investigation (albeit relying on the AFL’s compulsory powers).  ASADA could not have simply sought transcripts of prior player interviews.

Next steps

People appeal for different reasons. Some people appeal because they have been advised they have strong prospects of success.

Other people appeal simply because it costs less to run an appeal than to start paying legal costs owed to the other side. Such an appeal is more like a gamble.

Some people do not appeal at all.

In due course, the Applicants will decide which category applies to them.